Thursday, August 30, 2012

The 9th brushes off the U.S. Sentencing Commission in this intriguing opinion. In affirming a sentence, the 9th looks askance at the Commission's amendment 741 (what? you don't know them by number?) which states that sentencing procedure requires a 3-step approach: a guideline calculation, a consideration of departures, and then variances. Not in our circuit, huffs the 9th. In this case, the defendant plead to a 1326 re-entry. He argued for a departure or variance based on mental diminishment and cultural assimilation. The court sentenced him to the low end of the guideline range -- 24 months -- stating that the defendant didn't "fall outside the heartland." On appeal, the defendant argues that there was a procedural error in that the court did not first consider departures, and then move to variances. "Why would it?," questioned the 9th. After all, implies the 9th, it is all one and the same, and the better approach is to see if the sentence is reasonable. Oh, by the way, that is what we do in the 9th in U.S. v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). That is also the approach of the 7th Circuit. The 9th recognizes that the amendment was promulgated to resolve a supposed circuit split on approaches to departures: the 7th vs the majority of circuits (the opinion here observes that the Commissionn failed to mention that the 9th follows the 7th). The majority seem to require the 3-step procedure approach. The 7th could not be bothered, and believes that variances have replaced departures. However, the 9th concludes that the amendment does not abrogate the 9th's precedent. It is at best an instruction to the district court, but has no force with an appellate court, where the focus is on reasonableness of the reasonableness of the sentence. The amendment itself also seemed involved with immaterial minor adjustments to 1B1.1. The 9th's conclusion is that the amendment does not change a thing. Although it is a loss to the defendant here, the broader policy picture has the 9th embracing the post-Booker world, where variances have supplanted departures, and the focus is on the reasonableness of a sentence, and not the unnecessary 3-step approach required by the Commission.